Pak v. Toronto (City), 2014 HRTO 1702

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victor Pak Applicant

-and-

City of Toronto, John Janson, Stewart Morris, Jennifer Shield and Gary Thorne Respondents

-and-

Toronto Civic Employees Union, Local 416 Intervenor

AND B E T W E E N:

Richard Vella Applicant

-and-

City of Toronto, Stewart Morris and John Janson Respondents

-and-

Toronto Civic Employees Union, Local 416 Intervenor

DECISION

Adjudicator: Mark Hart Date: November 25, 2014 Citation: 2014 HRTO 1702 Indexed as: Pak v. Toronto (City)

APPEARANCES

Victor Pak and Richard Vella, Applicants Self-represented

City of Toronto, Stewart Morris, John Janson, Jennifer Shield and Gary Thorne, Respondents Zoya Trofimenko, Counsel

Toronto Civic Employees Union, Local 416, Intervenor Alycia Shaw, Counsel

1These are three Applications alleging discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The first Application is filed by the applicant Victor Pak (“Pak”) and dated November 23, 2010 alleging discrimination because of disability arising out of his requests in 2008 and 2010 for cotton uniforms. The second Application is filed by the applicant Richard Vella (“Vella”) and dated February 11, 2011 alleging discrimination because of disability arising from the same issues as raised by applicant Pak and also alleging reprisal arising out of the discontinuance of contract instructor services that applicant Vella previously had provided to the respondent through a third party contractor. The third Application is filed by the applicant Pak and dated July 5, 2011 alleging discrimination because of race, ancestry, place of origin, ethnic origin, disability, family status and reprisal arising out of a series of alleged events that occurred from and after July 6, 2010. Applicant Pak’s allegations of discrimination because of race, ancestry, place of origin and ethnic origin were withdrawn by the applicant subsequent to the preliminary hearing.

2On August 25, 2011, applicant Vella submitted a Request for Order seeking to amend his Application to raise further allegations of discrimination because of disability and reprisal. By further Requests for Order dated April 16 and 17, 2012, both applicants sought to further amend their Applications to add an additional allegation of reprisal.

3By Interim Decision dated October 31, 2013, these Applications were referred to an in-person one day preliminary hearing to hear oral submissions regarding the issues of whether all or any part of the Applications should be dismissed because of: delay; pursuant to s. 45.1 of the Code and/or abuse of process; and/or for no reasonable prospect of success in relation to discrimination and/or reprisal within the meaning of the Code. Given my determination below, it is not necessary for me to address the issue of the potential application of s. 45.1 of the Code.

4I also advised the parties at the preliminary hearing that I would address in my Decision the applicants’ requests to amend their Applications, the respondents’ request for removal of the personal respondents, and applicant Pak’s request for a sealing order and non-disclosure of personal information. Given my disposition of the Applications, it is not necessary for me to address the respondents’ request for removal of the personal respondents.

5The preliminary hearing was held on July 18, 2014 and I heard oral submissions from all parties. I have also considered the various written submissions filed by the parties.

6The allegations arise in the context of the City of Toronto Emergency Medical Services (“EMS”). Both applicants are employed as primary care paramedics with Toronto EMS.

2008 request for cotton uniforms

7Applicant Pak states that on October 12, 2008, he was suffering from skin rashes as a result of his uniform. He states that he spoke to his supervisor and requested alternate cotton uniforms. He was asked to provide a doctor’s note, and states that he did so on November 12, 2008. The doctor’s note states: “Mr. Pak likely has polyesterene allergy; probably cotton uniform would be helpful to alleviate this problem. Thanks.”

8Applicant Pak states that on December 11, 2008, he was told that his manager “had declared the doctor’s note invalid”. He also states that he was told that “further invasive medical testing would be required to confirm his medical condition”. This is disputed by the respondents.

9Applicant Pak states that on December 17, 2008, he was told that his manager believed alternate options had to be explored prior to issuing cotton uniforms. The applicant Pak states that on December 23, 2008, he tried an untreated 100% polyester liner and shortly thereafter developed rashes. He states that he notified his supervisor of this, and an order for cotton uniforms was placed the next day. He states that due to problems with obtaining the cotton uniforms from the vendor, he did not actually receive his cotton uniforms until August 2009.

10Applicant Vella tells a similar tale. He states that on October 18, 2008, he developed a rash on his neck due to his tactical shirt collar. He also states that he was told that in order to get a 100% cotton uniform, he would need a doctor’s note. He states that he obtained a doctor’s note on November 11, 2008, which he submitted to his supervisor on November 22, 2008. The doctor’s note provided by applicant Vella states: “requires 100% cotton uniform for allergy to [indecipherable]”. He states that he was told that his manager had said that he would need to undergo skin tests to prove that he had an allergy. This is disputed by the respondents.

11Applicant Vella states that on November 24, 2008, he showed his supervisor a rash that had developed due to contact with his tactical shirt. He states that on December 8, 2008, he had a conversation with his supervisor to ask about the status of procuring a 100% cotton uniform, and was told that the supervisor was working with upper management to resolve the issue. He states that on this date, he informed his supervisor that the entire uniform was itchy and causing him discomfort.

12He states that on December 11, 2008, he was told by his manager that he and applicant Pak would need to be sent “for corporate testing” in order to verify their allergies. He states that on December 17, 2008, he followed up with his supervisor about what testing would be required, and shortly thereafter was told that he would be issued cotton uniforms. This was confirmed again by his supervisor the following day. Once again, due to delays in obtaining cotton uniforms from the vendor, applicant Vella did not actually receive his cotton uniforms until August 2009.

13The respondent requests that these allegations be dismissed for delay. Pursuant to s. 34(1) of the Code, an application needs to be filed within one year of the last alleged incident of discrimination or, if there is alleged to have been a series of discriminatory incidents, the last alleged incident in the series. Applicant Pak’s original Application was filed on November 23, 2010, which is almost two years after the events at issue in relation to this allegation and some 15 months after he actually received his cotton uniforms. Applicant Vella’s Application was filed on February 16, 2011, some 26 months after the events at issue in relation to this allegation and 18 months after he actually received his cotton uniforms.

14The applicants take the position that the allegations relating to their 2008 requests for cotton uniforms form part of a series of incidents that extends to and includes an incident that occurred within the one year time period prior to the filing of their Applications. In particular, both applicants point to their allegations relating to their renewed requests for cotton uniforms in 2010 (discussed below), as being another incident in a series of incidents that is within the one year period. The difficulty with this submission is, as I will discuss below, I find that the 2010 allegations have no reasonable prospect of success, and accordingly dismiss the allegations on that basis. As a result, there is no live incident relating to the applicants’ requests for cotton uniforms in 2010 to which the 2008 allegations can attach themselves as part of a series of incidents.

15As a result, I need to consider whether the delay in filing the Applications in relation to the 2008 allegations was incurred in good faith. The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

16I am not satisfied that the applicants have provided a reasonable explanation for the delay in filing their Applications to raise their allegations regarding their 2008 requests for cotton uniforms. The applicants submit that they believed that the agreement to provide them with cotton uniforms in 2008 was an accommodation of their disability, and it was not until 2010 that they realized that this was not the case. I do not regard this as a reasonable explanation for the delay. The applicants ultimately received the cotton uniforms that they had requested. To the extent that any issues arise from the 2008 events, these may include the allegations about the initial refusal to accept their doctors’ notes and the alleged requirement for further testing and perhaps the delay in actually receiving the cotton uniforms. The basis for these allegations was known to the applicants at the time, and in my view required them to act within the one year period.

17Further, on the basis of the Application filed by Applicant Vella, it is clear that he was aware as early as December 2008 about his ability to file an “official complaint” and was encouraged to do so by an unidentified person in the respondent’s Human Resources department. Applicant Vella states that he did not do so “under the fear of reprisal” and “in an effort to work with management”. His Application states that the decision to require further testing was “quickly reversed” and he was eventually issued the cotton uniforms. The Application filed by Applicant Pak states that, as no further instances of questionable behaviour relating to his request for cotton uniforms took place between the time the uniforms were originally issued and the events in 2010, he “decided not to pursue any courses of action that may have been available at the time”.

18In my view, on the face of the Applications, both applicants knew of their ability to proceed with an allegation regarding the 2008 events, and made a deliberate decision not to do so. It is not open to the applicants to unwind this decision two years later on the basis of a subsequent event that I find has no reasonable prospect of giving rise to a Code violation.

19As a result, I find that the applicants have not provided a reasonable explanation for their delay in raising the allegations arising from their 2008 requests for cotton uniforms, and accordingly I am not satisfied that this delay was incurred in good faith. Given this finding, it is not necessary for me to address the issue of whether any substantial prejudice is caused to the respondents as a result of the delay.

20The allegations arising from the applicants’ 2008 requests for cotton uniforms are dismissed for delay.

Events in 2010 relating to cotton uniforms

21In August 2010, the applicants requested replacement cotton uniforms and were given an “Alternate Uniform Request” form. They were advised that they would have to be re-assessed by their doctors and have the form completed together with a “Consent to Disclose Personal Health Information” form in order to have their requests considered.

22The respondents states that due to an increase in requests for cotton uniforms, which are more expensive, they developed a new procedure in order to assess such requests. This new procedure involved the completion of a form by the employee’s doctor, which included such questions as: nature of current health problem (examples cited are irritant contact dermatitis, allergic contact dermatitis, contact urticarial, with space to specify some other health problem); whether the patient had been tested to identify a specific dye or other substance as the source of her or his current health problem; whether the patient has a pre-existing dermatological condition that requires her or him to wear an alternative uniform (examples given are eczema and psoriasis, with space to specify some other pre-existing condition); and room for the doctor to write in a specific recommendation.

23Once completed, this form was to be submitted by the doctor to the respondent’s medical advisor. In order to permit the employee’s doctor to provide the information requested to the respondent’s medical advisor, a content to disclose personal health information was also required to be given by the employee. This form also authorized the employee’s doctor to discuss her or his findings with the respondent’s medical advisor. The procedure and applicable privacy legislation requires the respondent’s medical advisor to maintain the confidentiality of the medical information provided by the employee’s doctor when giving advice to management regarding the requested accommodation.

24The applicants objected to completing the required forms, on the basis that completion of the forms would require invasive medical testing and constituted an unjustified intrusion into their privacy. The applicants contacted the respondent City’s Human Rights Office and requested a formal investigation into their concerns. The applicants received a letter from the respondent City’s Human Rights Office, stating that it had consulted with various health professionals within the respondent City, including an independent occupational health physician who provides services to the respondent City’s Employee Health and Rehabilitation Unit, and had been advised that the medical information requested is reasonable and/or necessary to facilitate their accommodation requests. The applicants were further advised that the medical information they provide is maintained and protected by the respondent’s EMS medical advisor and at no time is made available to any other person. They were advised that, after reviewing the medical information, the medical advisor would only provide management with a “please provide” or “not required” outcome to the accommodation request. The Human Rights Office also pointed out to the applicants that, while the respondent City’s Guidelines for Employees Requesting Employment Accommodation states that “employees have a right to privacy and need only provide information about their functional limitations, not the specific details of their disability”, it also goes on to state that “in some circumstances, medical information may be required to verify a disability”. As a result, the respondent City’s Human Rights Office concluded that the medical questionnaire did not contravene its Accommodation Policy or the Code.

25The applicants do not accept the conclusion reached by the respondent City’s Human Rights Office and so filed their Applications. They take the position that they should not be required to continuously prove their medical condition in order to receive accommodation.

26Despite not having completed the required forms, the applicants nonetheless received cotton uniforms as part of their uniform allotment in January 2012. While this apparently occurred in error, the respondent did not require the applicants to return their cotton uniforms. In the summer of 2012, the applicants completed and submitted the Alternate Uniform Request form, although not the Consent form. They once again received cotton uniforms as part of their uniform allotment in March 2014. This was accompanied by a letter from the respondent City dated March 7, 2014, in which it is stated that due to the temporary unavailability of the medical advisor, the respondent City was suspending its requirement for the applicants to sign the Consent form on a one-time basis and providing cotton uniforms as requested by the applicants’ doctors. This letter goes on to state that prior to any future uniform allotment, the applicants would be required to sign the Consent form.

27The issue before me at this stage of the proceeding is whether the applicants have a reasonable prospect of success in establishing that the requirement for them to sign the Alternate Uniform Request and Consent forms in order to have their request for accommodation considered constitutes a violation of the Code. As indicated above, I find that it does not.

28Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

29Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

30In my view, the issue arising out of the new process for making alternate uniform requests falls in the first category described in Dabic. Here, there is no dispute between the parties as to the nature of the new process required by the respondent City or the forms that the applicants were required to complete and submit. Rather, as stated in Dabic, the focus is on the legal analysis and whether what the applicants allege may be reasonably considered to amount to a Code violation.

31Pursuant to the Policy and Guidelines on Disability and the Duty to Accommodate published by the Ontario Human Rights Commission, a person with a disability who is requesting accommodation has the following relevant duties and obligations:

• advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)

• make her or his needs known to the best of his or her ability, preferably in writing, so that the person responsible for accommodation may make the requested accommodation

• answer questions or provide information regarding relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed

32Similarly, the person responsible for providing the accommodation has the following relevant duties and obligations:

• accept the employee’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise

• obtain expert opinion or advice where needed

• maintain confidentiality

• limit requests for information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request

33Where the existence of a disability is evident or non-contentious, an employee generally is not required to disclose the nature of the underlying medical condition. However, in the specific circumstances of this case, where the applicants’ reactions to or symptoms arising from the wearing of standard issue uniforms present as rashes and itching, in my view it is not unreasonable for the employer to seek to satisfy itself as to whether in fact there is an underlying medical condition that constitutes a “disability” within the meaning of the Code in order to trigger the duty to accommodate. This necessarily will require the provision of medical information from the applicants’ doctors to the respondent City. The assessment of whether a request for such information is reasonable in the circumstances also would include such things as: the extent and nature of the medical information requested; and the safeguards put in place to ensure that the medical information provided remains confidential to the greatest extent possible.

34In my view, the medical information sought from the applicants’ doctors on the Alternate Uniform Request form is minimally invasive and is directed at satisfying the respondent City’s medical advisor that there is an actual underlying disability that requires accommodation. Further, I am satisfied that the respondent City has put adequate safeguards in place to protect the confidentiality of the medical information provided, first by having the medical information shared only with the medical advisor and second by having the medical advisor protect the confidentiality of the medical information by only disclosing the outcome of the medical advisor’s review of this information.

35Further, it is my view that requiring the applicants to sign the Consent form is also reasonable in the circumstances. While, as appears to have occurred in the summer of 2012, the applicants themselves could have their doctors complete the Alternate Uniform Request form and themselves deliver the completed form to the medical advisor, doing so frustrates the ability of the medical advisor to discuss the findings with the doctor directly. It is important in my view to note that the required Consent form is limited only to disclosure of personal health information relating to the alternate uniform request, and any discussion between the medical advisor and the employee’s doctor is limited to the medical advisor’s evaluation of the employee’s specific request for accommodation. In my view, in the circumstances of this case, the Consent form is reasonable for the purpose of facilitating any discussion between the medical advisor and the applicants’ doctors in order to assist in the evaluation of their request and is appropriately limited to relevant information.

36In these circumstances, it is my view that the applicants have no reasonable prospect of success in establishing that the respondent’s requirement for them to complete the Alternate Uniform Request and Consent forms in order to have their requests for cotton uniforms evaluated by the medical advisor constitutes a violation of the Code.

37As a result, the allegations raised by both applicants in relation to the requirement in August 2010 for them to sign these forms are dismissed.

The July 6, 2010 “shower denial” incident

38Applicant Vella in his Application and applicant Pak in his second Application each raise an allegation of discrimination because of disability arising out of the same incident that occurred on July 6, 2010. On this day, the applicants were attending on a patient suffering from an episode of vomiting and who was not mobile. The applicants state that there were smog and humidex advisories in effect at the time and Toronto Public Health had issued an extreme heat alert advisory. Because they were dealing with a biomedical hazard, the applicants were wearing full personal protective equipment, including face masks, body gowns and gloves. In addition, they needed to attend to the patient in the patient’s apartment, which was not air-conditioned. Records indicate that the applicants were in the apartment for about 48 minutes.

39The applicants state that they developed heat-related illness, which included skin rashes and itchiness for applicant Vella and skin itchiness and a headache for applicant Pak. The applicants state that they reported their illnesses to their supervisor and requested that they be permitted to return to their home base for a shower and a uniform change. They state that they told their supervisor that their uniforms and underwear were soaked with sweat as a result of the call, and that this sweat was causing skin rashes and itchiness. Their request was denied.

40By letter dated July 21, 2010, the applicants complained about this incident to the respondent City’s Human Rights Office. The responsibility to deal with this complaint was assigned to the district commander, who advised the applicants on December 1, 2010 of his view that the supervisor had acted appropriately and professionally. This was confirmed in a letter dated December 30, 2010.

41The issue for me at this stage of the proceeding is whether the incident as alleged engages the protection of the Code. This raises the issue of whether the claimed “heat-related illness” can properly be regarded as a “disability” within the meaning of the Code. In his Application and in his complaint to the respondent’s Human Rights Office, applicant Vella describes this condition as a “temporary disability”. He states in his Reply that he informed his supervisor that he has sensitive skin that is prone to irritation, and that this is a longstanding skin condition. Applicant Pak states that a shower at the end of his shift resolved his skin itchiness and Advil and bed rest resolved his headache.

42Both applicants stated in their oral submissions at the preliminary hearing that they have contact dermatitis, and state that this condition is triggered by sweat. They allege that their contact dermatitis was triggered on July 6, 2010 by sweat and the heat-related illness.

43In my view, it is not necessary for me to determine for the purpose of this decision whether contact dermatitis constitutes a “disability” within the meaning of the Code. Even if that were the case, the first time that the applicants alleged that their condition on July 6, 2010 was attributable to contact dermatitis was at the preliminary hearing on July 18, 2014, over four years later. Up to that point, the applicants had described their condition on July 6, 2014 as “heat-related illness” and as a “temporary disability”. Without minimizing the seriousness and risks associated with heat-related illness, it is my view that this is a temporary condition that can affect a broad cross-section of the community in the right circumstances, in a manner similar to the common cold, bronchitis or the flu which have not been found to constitute disabilities within the meaning of the Code: see Ouimette v. Lily Cups, (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.); Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960; Davidson v. Brampton (City), 2014 HRTO 689. Nor do I find that the applicant Vella’s description of his condition in his Reply as being due to “sensitive skin” sufficient to ground a finding of a disability within the meaning of the Code.

44Accordingly, I find that the July 6, 2010 incident does not engage the ground of disability under the Code, and this allegation is dismissed as having no reasonable prospect of success.

Reprisal allegations

45In applicant Vella’s Application and in two requests to amend his Application and in applicant Pak’s second Application and in a request to amend his second Application, the applicant raise a series of allegations of reprisal against the respondents and various individuals they seek to add as respondents, as follows:

a. Applicant Vella works as a contract instructor for a third party organization (“SOCPC”) which provides instructor services to Toronto EMS. He was scheduled to conduct training for Toronto EMS on September 20, 2010. On September 13, 2010, he was advised by SOCPC that his contract to teach for Toronto EMS had been cancelled. He states that he was told that this was due to “labour relations issues”. This was confirmed by the respondents in their Response. Applicant Vella alleges that this was done because he had claimed his rights under the Code.

b. Both applicants state that they have experienced unresolved payroll issues dating back at least to 2009, which have been the subject of grievances. They allege that since the arrival of their current supervisor Stewart Morris (“Morris”), these payroll issues have taken longer to resolve.

c. Both applicants raise issues regarding what they describe as negative performance evaluations that they received on January 19, 2011. Both applicants provided their responses to the performance evaluations as part of the evaluation process.

d. Both applicants raise an issue regarding a meeting with Morris that took place on February 7, 2011 regarding what Morris described as a pattern of overlapping non-productive time. Of 14 occasions when the applicants were not at work in 2010, seven of these absences occurred on the same day. The applicants sent a letter to Morris on February 17, 2011 regarding this meeting “to request written correspondence” regarding the concern about a pattern of non-attendance and to request certain information. This resulted in a letter of expectation being issued by Morris on February 17, 2011 in response to the applicants’ letter. The letter states that during the February 7, 2011 meeting, the applicants took an adversarial and confrontational stance and the conversation became unnecessarily argumentative. The letter states that this conduct had been reviewed with Labour Relations, and as a result the letter of expectation would be submitted to the applicants’ files. The letter also states an expectation that the applicants will use sick, ill dependant and other time off for the intended purpose only, and that they act appropriately and professionally in the workplace, which includes during meetings with management.

e. Both applicants raise an issue regarding a meeting held on February 25, 2011 regarding their end of shift overtime and second meal variances. At this meeting, applicant Vella states that Morris said that their second meal variance (which is a half hour of overtime paid to an employee who is still at work one and a half hours after the end of their shift) was four times the average of their co-workers. The applicants took issue with the methodology used to reach this conclusion, and requested an audit of all co-workers’ use of such time. The applicants allege that they are being held to a higher standard than their co-workers, which they say is due to reprisal.

f. After the conclusion of the February 25, 2011 meeting, the applicants state that they spoke with two other EMS management representatives and said that they were victims of harassment and intimidation by supervisor Morris, though they did not provide specifics at that time. They requested limited, essential only contact with Morris pending the result of the process before this Tribunal on the basis that they feared further reprisal. They say that they were told that their request appeared to be reasonable, and would be forwarded to the District #1 Commander for assessment. On March 14, 2011, the applicants sent an e-mail to Morris and the District Commander stating that they were victims of intimidating and harassing behaviours by Morris and had requested that any supervisory contact be made through a third party. They also requested that Morris refrain from making any non-essential and/or non-patient care related contacts with them, stating that they were extremely uncomfortable working around Morris as they feared additional reprisals. The District Commander responded that same day to deny the applicants’ request, and confirmed that Morris would oversee the shift with the applicants as he does with all other paramedics on shift. This was followed by a further e-mail from the applicants to the Deputy Chief of Operations on March 15, 2011, requesting reconsideration of their request.

g. Both applicants raise an issue regarding an incident that occurred on March 20, 2011. On that day, the applicants were inside their ambulance and were approached by Morris, who wanted to ask them some questions about some issues that had arisen regarding some calls from the previous day. The applicants told Morris that they had already discussed these calls with another individual, were not prepared to answer Morris’ questions directly but would respond to a third party, and wanted Morris to leave. They state that Morris said that he was entitled to speak with them as their supervisor, and that he was just hoping to have a simple, easy discussion and review a couple of points. The applicants state that as a result of this interaction, they were required to attend at a hospital. The doctor at the hospital provided a medical note stating that they were fit to return to their normal duties, yet were to have no contact with Morris or, if contact needed to be made, that it be done in the presence of a third party. As a result of the doctor’s note, the applicants were placed on modified duties and their shift schedules were changed, which they allege to be reprisal.

h. On March 22, 2011, the applicants attended a meeting with a Toronto EMS management representative, at which they state that they were told that they had been placed on modified duties because their patient care on two calls from March 19, 2011 had been called into question and because their mental stability to perform their job as paramedics was in question due to their reaction to Morris on March 20, 2011.

i. Both applicants raise issues regarding investigative interviews held on April 5, 2011 regarding the two calls from March 19, 2011. The applicants take issue with a number of things arising from this meeting, including: that it appeared that issues arose as a result of a complaint by a co-worker but they were not provided with a copy of the complaint or information about the particulars of the complaint; that they were subjected to a “pop quiz” about pathophysiology and anatomy; and that a second crew arriving on the scene had made a medication error which the applicants believe was not investigated. The applicants state that they also were told at this meeting that the hospital doctor’s recommendations from March 20, 2011 were not being followed because these recommendations were beyond the scope of the doctor’s practice, and that Morris would remain as their supervisor.

j. Both applicants take issue with being required to attend a training session on April 13, 2011 (Vella) and April 14, 2011 (Pak), which they consider to be a further reprisal.

k. Both applicants take issue with letters of reprimand that were issued to them on April 14, 2011. With regard to the issue of patient care, the letter of reprimand states that on a particular call, the patient’s psychiatric history seemed to distract the applicants from performing a proper assessment or looking into underlying medical reasons for the patient’s behaviour and symptoms, and that the lift to transfer the patient from his bed to the stretcher was done poorly resulting in the patient being dragged by the ankles for a short distance. The applicants take issue with these conclusions. With regard to their interaction with Morris, the letter of reprimand states that when Morris attempted to review the call with the applicants, they refused to discuss the matter and became defensive, agitated, and stated that Morris was harassing, intimidating and causing them distress to the extent that they attended a hospital. The letter reiterated the expectation that the applicants conduct themselves in a professional and appropriate manner in all interactions with their assigned supervisor. Once again, the applicants take issue with these statements, and allege that they were being penalized for seeking required medical attention as a result of being approached by Morris despite repeated requests for no non-essential contact due to their allegations of reprisal, harassment and intimidation by Morris. The applicants grieved against the letter of reprimand pursuant to the collective agreement. The grievance ultimately was withdrawn by the union once the letter of reprimand was removed from their files after the expiry of two years from the date of issue.

l. Applicant Pak raises an issue about being required to return his worn safety shoes in the summer of 2010 in order to obtain a replacement pair, which he was told was required when shoes were returned within six months of issue. A similar issue arose in February 2011. Applicant Pak states that he was told by Morris on May 10, 2011 that only his safety shoe insoles will be replaced in future. Applicant Pak alleges this as reprisal.

m. Applicant Pak also raises an allegation of reprisal arising out of an incident that occurred on November 8, 2010, when he was asked by Morris to stop wearing his blue spring / fall jacket and switch over to a yellow high visibility parka. Applicant Pak alleges that he was singled out by Morris with this request.

n. Finally, both applicants have filed requests to amend their Application to allege reprisal arising out of an e-mail sent by Morris on August 1, 2011, inviting all staff on his shift to a barbeque at his home. The salutation in this letter is “ladies, gentlemen, others”. The applicants believe that the use of the term “others” was directed at them, and allege that this is another reprisal.

46Section 8 of the Code provides to an applicant the right to claim and enforce human rights without reprisal. Tribunal jurisprudence has long held that the prohibition against retaliation is a separate head of protection, which like other Code rights, is to be interpreted purposively: Jones v. Amway of Canada Ltd., [2002] O.J. No. 1504 (Div. Ct.). The right to be free from Code-related reprisal has been explained by this Tribunal as follows:

Section 8 of the Code provides, in part, that every person has a right to claim and enforce their Code rights and to institute and participate in human rights proceedings without reprisal or threat of reprisal. Reprisal has been held to be a separate ground of liability distinct from the discrimination and harassment protections of the Code. The test for reprisal includes a requirement that there be some evidence of the respondent’s intention to reprise or evidence of a link between the complainant’s invocation of rights and the respondent’s subsequent conduct that is considered to be retaliatory. The respondent’s intention may be inferred based on the complainant's reasonable perception that the respondent's action served as retaliation because of the complainant’s assertion of rights: see Jones supra at paras. 107-115 and Entrop v. Imperial Oil Ltd. (No. 7) (1995), 1995 CanLII 18196 (ON HRT), 23 C.H.R.R. D/213, upheld with respect to reprisal (2000), 37 C.H.R.R. 481, 2000 CanLII 16800 (ON C.A.).

Smith v. Menzies Chrysler, 2009 HRTO 1936 at para. 162. See also, Noble v. York University, 2010 HRTO 878.

47In relation to the reprisal issue raised by the applicants in this case, the summary hearing analysis falls within the second category identified in Dabic, above, and the question of whether the applicants can show a link between the alleged events and the grounds upon which they make their claim of reprisal and the required intent on the part of the respondents to engage in reprisal against them for seeking to claim or enforce their Code rights.

48I have three primary difficulties with the applicants’ allegations of reprisal. First, the majority of the applicants’ reprisal allegations are directed towards the conduct of their supervisor, Morris. Morris became the applicant’s supervisor after the 2008 issues relating to the applicants’ request for cotton uniforms, and was not involved in those issues. The first point in time when the applicants sought to claim their rights under the Code in relation to Morris arose out of the incident on July 6, 2010 when they were denied their request for a shower. Morris also was involved in relation to the Code issues raised by the applicants in August 2010 arising out of the implementation of the new procedure to process requests for alternate uniforms.

49The difficulty I have is that the applicants’ issues with Morris long pre-dated the point at which they raised any issue under the Code. In his reprisal Application dated February 25, 2011, the applicant Pak states that Morris had been “harassing” him for over a year, which would date back to early 2010, well before any issues were raised with Morris under the Code. On March 18, 2010, the applicant Vella wrote a letter to District Commander Thorne raising concerns about Morris’ conduct in relation to a call that they had responded to on March 6, 2010. In this letter, the applicant Vella alleged that Morris made comments that he regarded as “unprofessional, hurtful and slander in nature” and that a statement made by Morris was “a gross misrepresentation of events”, and requested “ongoing monitoring” of Morris’ actions.

50On May 6, 2010, both applicants submitted a further letter of concern to District Commander Thorne regarding the alleged conduct of Morris, including Morris’ alleged “lack of trust for his employees as exhibited by his pattern of constant questioning and double guessing of minor trivial matters that have no direct impact to patient care or operational requirements” and Morris’ alleged “attempt to project personal beliefs and values as operational policies”.

51The applicants sent a further letter of concern to District Commander Thorne dated July 21, 2010 regarding the alleged conduct of Morris. While this letter is dated subsequent to the July 6, 2010 request for shower incident, the concerns expressed in the letter all pre-date this first occasion when the applicants claimed their Code rights in relation to an incident involving Morris. The primary event raised in this letter is an incident that occurred on July 4, 2010 where the applicants were directed to respond to a scene where multiple shots had been fired. The applicants sought direction from Morris regarding their approach to the scene. The applicants characterized Morris’ direction as “reckless and dangerous”, and state that Morris’ direction “can only be construed as a reckless action where a normal reasonable individual would otherwise consider foolish”. The applicants alleged that Morris has a “seemingly cavalier attitude to safety”, violated the Occupational Health and Safety Act, and is not a “competent supervisor”.

52In the July 21, 2010 letter, the applicants further allege that “over the course of the past few months, Mr. Morris has exhibited a disturbing tendency of acting in an unprofessional, punitive, and aggressive manner when approached with Occupational Health and Safety concerns”. The applicants raise issues arising out of incidents involving Morris that are alleged to have occurred on March 16, 2010 and May 24, 2010. The applicants requested that their allegations be taken seriously and that a speedy investigation be conducted, and that “the intimidation tactics and threat of discipline employed by Mr. Morris cease immediately”.

53It is clear from the foregoing that there was a fraught and fractious relationship between the applicants and Morris that long preceded any assertion by the applicants of their rights under the Code. As a result, in my view, the applicants have no reasonable prospect that they will successfully be able to establish that their reprisal allegations as against Morris arose out of or were related to their claim that their Code rights had been violated, as opposed merely to being a continuation of a difficult and challenging relationship between the applicants and their supervisor. In making this finding, I am not expressing any view as to the validity of the various concerns and issues raised by the applicants regarding Morris. That is not my proper role at this early stage of the proceeding. Rather, even accepting that Morris did the various things he is alleged to have done, I am merely finding that the applicants have no reasonable prospect of successfully establishing a link or connection between Morris’ alleged actions and the assertion by the applicants of their Code rights.

54A second difficulty I have with the applicants’ reprisal allegations is the sheer number of individuals who are alleged to have engaged in reprisals. While many of the allegations are directed towards Morris, there are a significant number of other individuals implicated by the applicants’ allegations, including: applicant Vella’s reprisal allegation that he experienced reprisal when his services as a contract instructor for SOCPC were discontinued by Toronto EMS in or about September 2010 implicates District 1 Operations Commander Thorne, the Acting Commander of EMS Education & Development, the Deputy Chief / Director of Program Development and Service Quality, and the Education and Development Commander; the applicants’ reprisal allegation regarding the February 17, 2011 letter of expectation issued by Morris as a result of the February 7, 2011 meeting also implicates EMS Labour Relations which was consulted in preparation of the letter; the applicants’ reprisal allegation regarding their request for limited contact with Morris implicates District Commander Thorne and the Deputy Chief of Operations; the applicants’ reprisal allegation relating to being placed on modified duties implicates the District 5 Operations Superintendent, the District 1 Administrative Superintendent and the District 1 Operations Commander; the applicants’ reprisal allegations regarding the investigative interview held on April 5, 2011, the requirement to attend training and the April 14, 2011 letter of reprimand implicate the District 1 Administrative Commander; and applicant Pak’s reprisal allegation regarding his safety footwear implicates the District 1 Operations Superintendent, the EMS Operations Support Commander and the EMS Operations Support Superintendent.

55In order to succeed at a hearing in establishing that they have experienced reprisal for claiming their rights under the Code, not only would the applicants need to be able to prove that Morris acted with the requisite intent to engage in reprisal, but that all of these various other individuals also acted with the same intent and engaged in some broad-based conspiracy to reprise against the applicants because they claimed their Code rights. In my view, given the sheer number of individuals involved and the variety of different contexts in which reprisal allegations are raised, there is simply no reasonable prospect that the applicants would succeed in proving the requisite intent in relation to all of these various individuals.

56My third difficulty is that there are some allegations that on their face cannot reasonably support an allegation of reprisal. For example, the applicants’ reprisal allegation arising out of Morris’ August 1, 2011 e-mail and his reference to “others” is simply incapable to supporting that this word was targeted at the applicants and was intended as a reprisal towards them for claiming their Code rights, as opposed to an attempt at humour as illustrated by other salutations in e-mail invitations sent out by Morris (for example, the salutation “hey purple people and a few almost purple people”). Applicant Pak’s reprisal allegation about being required to return his used safety footwear also strikes me as having no reasonable connection to an intent to take adverse action against him for seeking to claim his Code rights.

57For all of these reasons, I find that the applicants have no reasonable prospect of success in establishing that they experienced reprisal as a result of having sought to claim their rights under the Code, and the reprisal allegations are hereby dismissed on that basis.

58Finally, applicant Pak raises an allegation of discrimination because of family status in his second Application, which appears to relate to the meeting held on February 7, 2011 where an overlap in non-productive time was discussed by Morris with both applicants. It appears that some of applicant Pak’s absences were due to his mother’s medical condition. Applicant Pak takes the position that the letter of expectation issued by Morris on February 17, 2011 discouraged him from using his ill and ill dependant time entitlements, and thereby constitutes discrimination because of disability and family status. The letter of expectation merely states that non-productive time is monitored by management for patterns, and expresses Morris’ expectation that sick, ill dependant or other time off be used only for the intended purpose. In my view, there is nothing discriminatory about this letter of expectation.

Applicant Pak’s request for a sealing order and non-disclosure of personal information

59Applicant Pak filed a Request for Order seeking a sealing order and non-disclosure of personal information, relating primarily to his medical condition. In my view, there is nothing about this case that distinguishes it from the many other cases dealt with by this Tribunal where allegations of discrimination because of disability are raised. Hearings before and decisions of this Tribunal are public. While I have endeavoured in my Decision to be sensitive to the applicants’ concerns about confidentiality of medical information, I have needed to include some information in order to inform and address the issues raised. In my view, there is no proper basis to support applicant Pak’s request for a sealing order and non-disclosure of personal information.

ORDER

60For the foregoing reasons, I hereby make the following order:

a. The Applications are dismissed for delay and/or as having no reasonable prospect of success;

b. The applicants’ Requests for Order to amend their Applications are denied; and

c. Applicant Pak’s request for a sealing order and non-disclosure of personal information is denied.